Tag Archives: varela

It’s been a while since I talked about Garzón and given that he continues to occupy large swathes of newspaper print, I think it’s a good time to have a look at what’s happening at the moment.

Last Friday Garzón was suspended from office after the legal process was accelerated to lightning speed, or that’s how it seemed at least to everyone in Spain who has experienced the usual pace of bureaucracy and legal procedures in this country.

Garzón’s application for a transfer to The Hague to work as an assessor to the International Criminal Court was granted on Tuesday of this week. Unsurprisingly he has been accused of trying to escape from the investigation brought against him by the Falange and Manos Limpias (in addition to the other two enquiries, about Banco Santander and Gürtel scandal.) Given Garzón’s interest for pursuing high-profile international crimes, moving to The Hague is undoubtedly a good career move, especially when the atmosphere in Spain does not appear to be very conducive to such investigations. The transfer is, above all, a promotion.

I admit that I’m no expert in judicial matters, but it appears that no one is clear what is going to happen next in terms of the investigation. The whole investigation has been characterised by the very fact that it has been very uncharacteristic in terms of judicial procedure:

Garzón is being investigated for the crime of prevarication, after declaring himself competent to investigate crimes against humanity under Franco. Yet very soon afterwards he did a complete u-turn and closed the investigation.

Certain processes have been speeded up or slowed down according to, or so it appears, Varela’s whims.

Since 1997 Manos Limpias has brought 17 official complaints against Garzón but they were all dismissed until 2009.

The CGPC declared that five separate certificates would be needed to authorise Garzón’s transfer to The Hague. This was thrown out by Gómez Begresista for not being based on any legal grounds.

The debate about the crime of prevarication (I’m not going to enter into the legal debate around the Gürtel scandal or Banco Santander) has crystallised and can be categorised more or less neatly into two different camps, which unsurprisingly occupy the left and right of the political spectrum.

Those on the right believe that is not a political case, that Garzón is not being hunted down and that, above all, this is a clear, straightforward point of law. Did Garzón overstep the line? That’s all they ask. Yes or no? It’s an attempt to isolate the politics and the support for Garzón and to try and simplify the investigation as much as possible, neatly ignoring contradictions and conflicts of interest.

Those who support Garzón, on the other hand, see the investigation as a complex process replete with irregularities and uncharacteristic practices. For them, it’s a murky world full of conflicts of interest, egos and reputations, in which interpretation is key. Let’s not forget that Garzón, when deciding whether he could declare himself capable of investigating the Francoist crimes, was supported by other members of the Spanish Criminal Court (Audiencia Nacional.) Supporters and critics of Garzón cite the Amnesty Law, the Constitution and international law in order to defend their respective points of view. Rather than an overly simple yes or no, this case is about the interpretation of law: what it means and how it can be applied.

Whatever happens over the coming days, weeks and months, I’m sure that we’ll see more of this dialectic pattern of arguments in favour and against Garzón. Is it a simple case of right or wrong, yes or no, or a complicated mixture of different interests and readings of law? It’s clear that the Garzón case is a matter of interpretation in more than one sense, so I’ll leave it to you to decide.

*As a footnote to this entry, and as an extension of the simplicity-complexity dialectic, it’s worth considering the Gürtel scandal. The Popular Party are trying to paint it as a simple case in which a few people took advantage of the party to make pots of money. The critics, on the other hand, see it as far more complicated, with deep roots within the party and effects on the decisions and behaviour of the Popular Party.

The foundation stone of the current democratic system is the Amnesty Law of 1977, a law which allowed a system to be built by concentrating on the future and trying to ignore the past. However this Amnesty law is outdated and is now creating the main sticking point with regards to the case against Garzón who is said to have not respected this law. Nevertheless it is the Amnesty Law which is preventing the true expression of democracy, freedom and human dignity and rights.

Despite what some might say, this isn’t about Garzón believing himself to be above the law. This is about finding out the truth about the past and whether or not war crimes were committed. His aggressive pushing at the boundaries of the law was applauded when it involved terrorism but now he has crossed an invisible line.

As always with law, the interpretation of individual laws is extremely important. According to the Supreme Court, Garzón has overstepped his responsibilities by declaring himself capable of pursuing the cause against crimes committed during the dictatorship. The issue is that the Amnesty Law is incompatible with both international law and the Spanish constitution (article 10.2). Is international law more important than national law? The Spanish judiciary were certainly delighted with Garzón’s pursuit of Pinochet and other international crimes. What has changed? Nothing, except the crimes being investigated happened in Spain. It’s clear that when the law is so contradictory that prevarication can be both argued and dismissed. Consequently, in essence this case is purely a political issue.

The Amnesty Law has already been criticised by the U.N. for its infringement of human rights. Such laws are useful for starting a new regime, but are not compatible with the long term development of a democracy (this is the experience of several countries in South America). What we have is an important foundation stone of the current regime which is incompatible with the development of the Spanish democracy. Something has got to give. Will it be the Amnesty Law, or will it be the democracy? What is certain is that this is a defining moment in the future course of history, memory and justice in Spain.